949 F.

2d 15

Steven M. DesROSIERS, Plaintiff, Appellant,

v.
John J. MORAN, et al., Defendants, Appellees.
No. 90-2121.

United States Court of Appeals,

First Circuit.
Submitted Sept. 6, 1991.
Decided Nov. 15, 1991.

Steven M. DesRosiers, on brief pro se.

Anthony A. Cipriano, Deputy Chief, Legal Services, Rhode Island Dept.
of Corrections, on brief for appellees.
Before BREYER, Chief Judge, and SELYA and CYR, Circuit Judges.
SELYA, Circuit Judge.

Plaintiff-appellant Steven M. DesRosiers is an inmate at the Adult Correctional

Institutions (ACI), Cranston, Rhode Island (a state prison). Invoking 42 U.S.C.
1983 (1988), DesRosiers sued eight state actors in the United States District
Court for the District of Rhode Island.1 His principal contention was that the
defendants failed to furnish him adequate medical care during his incarceration,
thereby violating the Eighth Amendment (applicable to state actors by means of
the Fourteenth Amendment). After a bench trial at which DesRosiers
represented himself, the district court entered judgment for the defendants.
DesRosiers appeals. We affirm.

* The trial testimony revealed that, in 1987, DesRosiers was a maximumsecurity inmate at the ACI. In April, he underwent surgery at Rhode Island
Hospital (RIH) to remove a pilonidal cyst from his lower back and buttocks.
Following the operation, DesRosiers was transferred to the ACI and placed in a
high-security infirmary ward. The parties agree that DesRosiers' stay at RIH
and the prison infirmary was unremarkable. They likewise agree that he was
doing reasonably well when he returned to the ACI's maximum-security facility

on May 12, 1987 (after a check-up at RIH). At that time, RIH physicians
recommended to the ACI's medical staff that DesRosiers--who, once back in
maximum security, was immediately shunted to the punitive segregation unit
(PSU) in order to fulfill a previous disciplinary sanction--should shower thrice
daily and have the dressing on his wound changed at like intervals.
3

DesRosiers asserted that this prescribed regimen was thwarted because the
defendants either denied, or interfered with, the recommended course of
treatment. He testified to a pattern of callousness and neglect. Specifically, he
criticized members of the ACI's nursing staff for refusing to assist him in
changing his bandages. He also accused the guards of preventing him from
taking the suggested number of showers. In a contrary vein, the defendants
contended that literal compliance with the RIH recommendations was not
constitutionally mandated; that DesRosiers was allowed to perform sufficient
ablutions; and that the medical staff effectively fulfilled the rest of the regimen
by helping DesRosiers on some occasions and, on other occasions, giving him
supplies with which to change his own dressings. Specifically, ACI nurses
testified that the plaintiff's condition was closely monitored by doctors and
nurses alike, both before and during his confinement in the PSU; that
DesRosiers had been given an ample supply of sterile dressings and cleansing
solution to conduct self-care during the nurses' busiest shift (3:00-11:00 p.m.);
and that the plaintiff's dressings were regularly checked and changed by
medical personnel on less frenetic shifts. Nurse Stephenson testified that there
was nothing in the plaintiff's treatment protocol that contradicted the use of
self-care to change dressings. Moreover, she said that the plaintiff was entirely
capable of assisting himself in this regard. Nurse Wilburn testified along the
same lines. In her testimony, the plaintiff's surgeon confirmed that, with some
initial tutelage, post-surgical patients should normally be able to change their
own dressings. The plaintiff's contention that he was denied the specified
number of showers was undermined by testimony from correctional officer
Ricci.

The plaintiff was released from segregation after eighteen days. It is

uncontradicted that, while at the PSU, he developed a nasty infection in his
surgical wound. Medical evidence about the cause of the infection was
inconclusive. Documentary proof was scant; in point of fact, the evidence was
scattershot as to whether, and if so, to what extent, the prison's medical staff
was required to document the delivery of routine services. Lack of adequate
prophylactic care could, of course, have brought about such a condition. There
were, however, several other possibilities. For example, DesRosiers' surgeon
admitted that surgical wounds of this type are highly susceptible to infection
even if good hygienic practices are assiduously followed.

On this pleochroic record, the district court found that the defendants made an
honest, good-faith effort to provide DesRosiers with the best care possible in
light of prison conditions characterized by limited staffing and precarious
safety. The court determined that, while DesRosiers did not always receive
three daily showers, he was invariably afforded the opportunity to shower at
least once a day. The court found that DesRosiers was provided with a
satisfactory supply of bandages and kindred materials and that he was capable
of changing his dressings without assistance. The court also found, in
substance, that the level of care which DesRosiers received was adequate, if not
ideal. Based on these findings, the court concluded that DesRosiers had failed
to prove an Eighth Amendment violation.2

II
6

Having reviewed the record with care, we believe that the district court's
findings and conclusions are supportable both legally and factually. We
elaborate, albeit briefly.

A.
7

The Eighth Amendment, by its terms, prohibits the infliction of "cruel and
unusual punishment." When, as here, a convict claims that state prison officials
violated the Eighth Amendment by withholding essential health care, he must
prove that the defendants' actions amounted to "deliberate indifference to a
serious medical need." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292,
50 L.Ed.2d 251 (1976). Deliberate indifference is conduct that offends
evolving standards of decency in a civilized society. See Rhodes v. Chapman,
452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); Estelle, 429
U.S. at 102-03, 97 S.Ct. at 290-91. As such, it has both an objective component
(was there a sufficiently serious deprivation?) and a subjective component (was
the deprivation brought about in wanton disregard of the inmate's rights?). See
Wilson v. Seiter, --- U.S. ----, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d, 271
(1991). In practice, as this case illustrates, these components may overlap or
merge.

In evaluating the quality of medical care in an institutional setting, courts must

fairly weigh the practical constraints facing prison officials. See id. 111 S.Ct. at
2326. Moreover, inadvertent failures to provide medical care, even if negligent,
do not sink to the level of deliberate indifference. Whitley v. Albers, 475 U.S.
312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986); Layne v. Vinzant, 657
F.2d 468, 471 (1st Cir.1981); Ferranti v. Moran, 618 F.2d 888, 890-91 (1st
Cir.1980). In order to establish deliberate indifference, the complainant must

prove that the defendants had a culpable state of mind and intended wantonly to
inflict pain. See Wilson, 111 S.Ct. at 2324-25; Steading v. Thompson, 941 F.2d
498, 500 (7th Cir.1991). The requisite state of mind may be manifested by the
officials' response to an inmate's known needs or by denial, delay, or
interference with prescribed health care. Estelle, 429 U.S. at 104-05, 97 S.Ct. at
291-92. While this mental state can aptly be described as "recklessness," it is
recklessness not in the tort-law sense but in the appreciably stricter criminallaw sense, requiring actual knowledge of impending harm, easily preventable.
See Wilson, 111 S.Ct. at 2324-26; McGill v. Duckworth, 944 F.2d 344, 347
(7th Cir.1991).
B.
9

Next, we consider the supportability of the district court's factual findings. In

performing this task, our standard of review is highly respectful. Under
Fed.R.Civ.P. 52(a), we assay findings of fact in a bench trial only for clear
error.3 See, e.g., Jackson v. Harvard Univ., 900 F.2d 464, 466 (1st Cir.), cert.
denied, --- U.S. ----, 111 S.Ct. 137, 112 L.Ed.2d 104 (1990); Keyes v. Secretary
of the Navy, 853 F.2d 1016, 1019 (1st Cir.1988). Deference to the nisi prius
court is particularly appropriate where, as here, the evidence is in disarray and
the court's findings pivot on credibility determinations. See Anderson v. City of
Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518
(1985); Rivera-Gomez v. de Castro, 900 F.2d 1, 4 (1st Cir.1990); Reliance
Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d 575, 576 (1st Cir.1989). It
is of no consequence whether we, if painting on an empty canvas, would have
found the facts differently. Langton v. Johnston, 928 F.2d 1206, 1219 (1st
Cir.1991); Jackson, 900 F.2d at 466.

10

In the situation at hand, each of the findings of fact made below derives ample
support from the record. Thus, applying the proper standard, there is no
principled way in which we can disturb them. Although a different factfinder
might conceivably have given the evidence a different construction and
therefore reached a different set of conclusions, the lower court's findings must
be honored. It is firmly settled, after all, that, "[w]here there are two
permissible views of the evidence, the factfinder's choice between them cannot
be clearly erroneous." Anderson, 470 U.S. at 574, 105 S.Ct. at 1512.

C.
11

We now integrate the law with the facts as supportably found. Assuming,
purely for the sake of argument, that DesRosiers' surgery created a serious
medical need, we cannot say that the court below erred in holding that the

defendants' failure to have a nurse change DesRosiers' bandages three times a

day, even if coupled with some curtailment of shower access, could not be
equated with deliberate indifference to his medical needs. The prison staff did
not ignore DesRosiers' medical condition, deprive him of needed care in any
constitutionally significant sense, or display an intention of punishing him by
withholding treatment. The testimony demonstrated rather conclusively that
DesRosiers had successfully changed his bandages on many occasions and that
the defendants were not fully aware either of any special difficulties he may
have had in doing so or of any special hazards involved in that praxis. The
nurses supplied DesRosiers with saline solution, gauze bandages, sterile bowls,
and instructions for self-ministration. The testimony established that it was not
uncommon for patients, having undergone comparable operations, to assume
significant responsibility for their own care. Although it might have been
preferable had DesRosiers' dressings invariably been changed by third parties,
the departure can scarcely be said to offend accepted standards of decency,
indicate obduracy, constitute recklessness in the criminal-law sense, or amount
to the wanton infliction of unnecessary pain. See, e.g., Sires v. Berman, 834
F.2d 9, 12-13 (1st Cir.1987) (inmate patient failed to show that a third party
was needed to administer medical treatment when similarly situated civilian
patients did not depend on others to treat their ailments); cf. United States v.
DeCologero, 821 F.2d 39, 43 (1st Cir.1987) (a penal institution's obligation to
deliver health care to its constituency "is met in full measure by the provision of
adequate services") (emphasis supplied).
12

Much the same can be said for any shortfall in the shower quotient. There is
simply no basis to infer that the defendants knew that infection would result
from the effect of lessened shower time, even when superimposed upon the
incidence of self-administered dressing changes.4 Given the lower court's
supportable finding that DesRosiers received at least daily access to the shower
facilities, together with the lack of any competent evidence that (a) the denial of
more frequent showers caused the plaintiff's condition to worsen, or (b) the
guards were motivated by any improper animus, the district court did not err in
concluding that plaintiff's constitutional rights were unaffected.

13

On the weight of the credible proof, it seems to us, as it did to the court below,
that the defendants' conduct amounted at worst to some specie of carelessness.
Considerably more was required to make out a federal case. See, e.g., Ortiz v.
City of Imperial, 884 F.2d 1312, 1314 (9th Cir.1989) (per curiam) (medical
malpractice is not sufficient, in itself, to constitute deliberate indifference);
Wester v. Jones, 554 F.2d 1285, 1286 (4th Cir.1977) (per curiam) (similar). Put
another way, a claim of inadequate medical treatment which reflects no more
than a disagreement with prison officials about what constitutes appropriate

medical care does not state a cognizable claim under the Eighth Amendment.
14

In sum, the proof falls far short of compelling a finding that DesRosiers'
treatment was so grossly inadequate as to constitute a knowing denial of proper
medical care. Compare Gill v. Mooney, 824 F.2d 192, 195-96 (2d Cir.1987)
(guards' deliberate defiance of prison doctor's express instructions, solely for
purpose of causing prisoner unnecessary pain, could transgress the Eighth
Amendment); Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir.1985) (medical
attention given to epileptic pretrial detainee was so inadequate that it resulted in
death and constituted deliberate indifference). We therefore decline to secondguess the trial court's evaluation of either the defendants' mental state or the
adequacy of the treatment rendered. Having studied the record, we are not "left
with the definite and firm conviction that a mistake has been committed." In re
Tully, 818 F.2d 106, 109 (1st Cir.1987) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

III
15

The plaintiff also complains that the district court failed to allow him to show a
violation of certain regulations pertaining to the operation of the ACI (the
Morris Rules). The Morris Rules were promulgated in consequence of a
consent decree entered by the United States District Court for the District of
Rhode Island. That decree, dated April 20, 1972, memorialized the settlement
of a class action brought on behalf of all inmates then in situ at the ACI and all
future inmates. See Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir.1991)
(discussing origin of Morris Rules). The current text of the rules is reproduced
in Morris v. Travisono, 499 F.Supp. 149, 161-74 (D.R.I.1980). The plaintiff
claims that, in his case, the doctor's "prescribed orders were not carried out,"
thus denying him "daily access to medical facilities" as required by the Morris
Rules. Appellant's Brief at 14.

16

We view this as a non-issue. With respect to inmates confined in the PSU, the
Morris Rules direct in broad generality that "access to medical facilities" be
made available. See Morris v. Travisono, 499 F.Supp. at 173. But that
generality does not require access on demand. Here, nothing in the record
suggests that plaintiff was denied needed access to medical facilities or that
essential medical care was withheld. The Morris Rules were, therefore,
cumulative, see infra, if not altogether irrelevant.

17

There is, of course, a more fundamental reason why the Morris Rules were
inconsequential in this instance. Not every breach of prison regulations will
give rise to an Eighth Amendment claim. What counts is whether the official

conduct of which the plaintiff complains was in derogation of the

constitutionally mandated "deliberate indifference" standard.5 See McGill, 944
F.2d at 349 (guard's violation of prison's rules not equivalent to Eighth
Amendment violation); Amsden v. Moran, 904 F.2d 748, 757 (1st Cir.1990) (a
state actor does not infract the substantive component of the due process clause
merely by violating a state law or regulation), cert. denied, --- U.S. ----, 111
S.Ct. 713, 112 L.Ed.2d 702 (1991); Strachan v. Ashe, 548 F.Supp. 1193, 1202
(D.Mass.1982) (similar; Eighth Amendment case); see generally Paul v. Davis,
424 U.S. 693, 700, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). In fine,
regardless of what the Morris Rules provided, the district court's finding that
the care given exceeded the minimum required by the Eighth Amendment was
dispositive of DesRosiers' claim. The Morris Rules were beside the point.6
IV
18

The plaintiff complains that the lower court erred in not compelling production
of certain documents. The record is murky as to the documents' exact nature.
As best we can piece it together, DesRosiers maintains that a management
study (the Study) was done by Carter-Global Associates; that, in the course of
the Study, Carter-Global prepared a series of treatment policies and procedures;
and that, at some unspecified time in 1987, these policies and procedures were
codified in a health care manual (the Manual) and put into effect at the ACI.7 In
order to place the ostensible error into perspective, we first trace the history of
the discovery request. We then consider plaintiff's asseverations.

A.
19

On August 12, 1989, the plaintiff served a demand for document production
pursuant to Fed.R.Civ.P. 34. That demand sought, inter alia, the production of "
[a]ny and all policies that establish[ed] the duties and responsibilities of [the]
defendants" as well as "[a]ny and all policies concerning the treatment and care
of [sic] medically prescribed treatment to inmates by the medical staff at the
ACI." The defendants objected, claiming overbreadth and burdensomeness.
Some four months later, on January 18, 1990, the plaintiff moved to compel.
No objection appearing, the motion was granted under the local rules. See
D.R.I.L.R. 12(a)(2) (unopposed motions may, in the district court's discretion,
be deemed granted).

20

On June 8, 1990, a pretrial hearing was held. Despite the twin facts that (1) the
plaintiff knew the Study and the Manual existed, and (2) neither had been
produced, the docket entry does not indicate that he called this situation to the
court's attention. On October 12, 1990, the case was reached for trial. Once

again, the plaintiff said nothing about the missing documents. The first witness
was Dr. William Chang, an ACI physician. The plaintiff began to question Dr.
Chang about the Study. Defense counsel objected, claiming unfamiliarity with
the Study and the Manual. Ultimately, the plaintiff demanded that the
documents be produced for introduction into evidence. The judge questioned
DesRosiers closely about how those items would be relevant to the
constitutional claim. DesRosiers responded that the Manual would show that,
notwithstanding his placement in the PSU, he should have been accorded
access to medical facilities. After a lengthy colloquy, the district court
postponed ruling on the plaintiff's request "for the moment." The trial
continued that day and was resumed on November 1, 1990. The plaintiff never
renewed his request for the Manual and the court never formally ruled on the
request.
B.
21

DesRosiers argues, first, that the defendants were obliged to produce the
documents during pretrial discovery and that their failure to do so necessitates
retrial. Accepting the plaintiff's premise--that the Study and the Manual fell
within the scope of the pretrial production order--his conclusion nevertheless
overlooks the realities of the record.

22

Ordinarily, if a failure to make timely discovery comes to light before or during

trial, the remedy is to order the information produced and to take immediate
steps to cure any prejudice. Depending on the nature of the breach, such
curative steps might involve a continuance, see, e.g., Jackson, 900 F.2d at 46869, a mistrial, see, e.g., Taylor v. Illinois, 484 U.S. 400, 413, 108 S.Ct. 646,
655, 98 L.Ed.2d 798 (1988) (listing possible remedies for discovery violations,
including the declaration of a mistrial), a preclusionary order, see, e.g., Navarro
de Cosme v. Hospital Pavia, 922 F.2d 926, 932 (1st Cir.1991); Fashion House,
Inc. v. K Mart Corp., 892 F.2d 1076, 1081-82 (1st Cir.1989), or striking the
responsible party's pleadings, see, e.g., Marquis Theatre Corp. v. Condado Mini
Cinema, 846 F.2d 86, 88-90 (1st Cir.1988). But, DesRosiers sought none of
these anodynes below, electing instead to proceed with the ongoing trial. Under
such circumstances, granting a retrial on the ground that a discovery violation
occurred would amount to giving the plaintiff two bites at the cherry.8 We
decline to do so.

C.
23

The conclusion that the plaintiff cannot rewardingly assign error to the
discovery violation does not end our inquiry. The fact remains that the plaintiff

demanded production of the Manual at trial and did not receive it. The plaintiff
says that this denial was itself reversible error.
24

We think this argument is doubly flawed. For one thing, the plaintiff's mid-trial
request was not denied; rather, the court deferred it. The plaintiff chose neither
to resurrect the issue nor to ask the judge at a later time to make an up-or-down
ruling. In our view, a party who seeks a ruling must persist in his quest to some
reasonable extent. If the court postpones action, the proponent must ordinarily
call the matter to the court's attention at a later point in the trial if he is to
preserve his rights. See United States v. Benavente Gomez, 921 F.2d 378, 385
n. 3 (1st Cir.1990) (where the court defers ruling on an objection, the objector
must "renew his objection later to preserve ... the point"); 1 J. Weinstein & M.
Berger, Weinstein's Evidence, p 103, at 103-23 (1986) (if court reserves ruling,
it is the proponent's obligation to raise the point again). Under the
circumstances, DesRosiers' mid-trial request was waived.

25

For another thing, we doubt the relevancy of the Manual. DesRosiers made it
plain that he wanted the Manual during trial to show that, notwithstanding
confinement in the PSU, his access to medical facilities should not have been
curtailed. But, as we have already made clear, see supra Part III, DesRosiers
failed to prove that he had a legitimate medical need for such access, beyond
that received, during the period in question. Moreover, the record does not
show that the treatment policies were actually in effect during the spring of
1987 (when the critical events transpired). Under all the circumstances, the
plaintiff has failed to establish that the Manual was relevant to any genuine
issue before the court. See, e.g., Bemis v. Kelly, 857 F.2d 14, 18 (1st Cir.1988)
(it is the proponent's burden to demonstrate the relevancy of proffered
evidence); see generally Fed.R.Evid. 401 (defining "relevant evidence" as
evidence tending to make more or less probable "the existence of any fact that
is of consequence to the determination of the action"). The lower court did not
abuse its wide discretion by not ordering production of the Manual during the
trial proper. See Veranda Beach Club Ltd. Ptship. v. Western Sur. Co., 936
F.2d 1364, 1373 (1st Cir.1991) ("In the federal system, a trial court has
appreciable flexibility in ... excluding evidence on relevancy grounds.").

V
26

Applicable law provides that, with respect to suitors who proceed in forma
pauperis, "[t]he court may request an attorney to represent any such person
[who is otherwise] unable to employ counsel." 28 U.S.C. 1915(d) (1988). The
plaintiff claims that the district court erred in not granting his serial requests for
counsel under that statute. We review the lower court's ruling under an abuse-

of-discretion standard.
27

We start with bedrock. There is no absolute constitutional right to a free lawyer

in a civil case. Bemis, 857 F.2d at 15; Childs v. Duckworth, 705 F.2d 915, 922
(7th Cir.1983). Hence, to succeed on this assignment of error, DesRosiers must
demonstrate that he was indigent and that exceptional circumstances were
present such that a denial of counsel was likely to result in fundamental
unfairness impinging on his due process rights. See Childs, 705 F.2d at 922.

28

Although the record is scumbled, it seems probable that DesRosiers cannot

vault even the first of these hurdles. When a litigant asserts his indigency, he
must carry the devoir of persuasion. Here, DesRosiers twice applied for forma
pauperis status, but the district court appears never to have found him eligible.
Indeed, the court ordered him to pay filing fees and the like, and he did so. The
court also suggested that attorneys could be found to represent the appellant on
a contingent fee basis. With the case in this posture, the district court's refusal
to appoint counsel cannot rewardingly be assigned as error. See Sears, Roebuck
& Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir.1988) (per
curiam) ( 1915(d) only allows appointment of counsel where a litigant is
indigent); Hudak v. Curators of Univ. of Mo., 586 F.2d 105, 106-07 (8th
Cir.1978) (per curiam) (fact that case is one where contingent fee seems
feasible bears on district court's exercise of discretion under 28 U.S.C.
1915(d)), cert. denied, 440 U.S. 985, 99 S.Ct. 1799, 60 L.Ed.2d 247 (1979); cf.
Temple v. Ellerthorpe, 586 F.Supp. 848, 850-53 (D.R.I.1984) (discussing
indigency vis-a-vis 28 U.S.C. 1915 in pro se prisoner cases).

29

Even if DesRosiers were financially eligible for the balm of 28 U.S.C.

1915(d), the court would not have been compelled to invoke the statute. To
determine whether there are exceptional circumstances sufficient to warrant the
appointment of counsel, a court must examine the total situation, focusing, inter
alia, on the merits of the case, the complexity of the legal issues, and the
litigant's ability to represent himself. See, e.g., Cookish v. Cunningham, 787
F.2d 1, 2-3 (1st Cir.1986) (per curiam); Childs, 705 F.2d at 922; Maclin v.
Freake, 650 F.2d 885, 887-88 (7th Cir.1981) (per curiam). We will overturn the
denial of a request for appointed counsel in a civil case only if the record, taken
as a whole, reflects a manifest abuse of the trial court's broad discretion. See
Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir.1989); Richards v. Harper, 864
F.2d 85, 87 (9th Cir.1988).

30

We think that this case falls short of the mark. From the start, given the
elevated Eighth Amendment threshold, DesRosiers' chances of success appear
to have been modest--a factor which militates against appointing counsel. See

Childs, 705 F.2d at 922. The legal issues were not especially complex: the facts
were less than arcane and the applicable law, insofar as it impacted this case,
was not beyond a layman's comprehension. Such a combination--readily
mastered facts and straightforward law--strongly suggests that appointed
counsel should be denied in a civil case. See, e.g., Cookish, 787 F.2d at 4;
Maclin, 650 F.2d at 889. Moreover, the record indicates that DesRosiers was
quite capable of examining the witnesses and adducing his side of the story. He
displayed relative familiarity with the legal process, exhibited no functional
impairments, drafted intelligible pleadings, and provided citations to support his
legal theories. To be sure, DesRosiers self-deprecatingly offers examples of his
difficulties in expressing himself at trial in an effort to show the existence of
exceptional circumstances. The transcript, however, bears contrary witness. It
demonstrates that, all things considered, DesRosiers handled matters well.
31

Then, too, we think it is significant that a jury was not empaneled. In a bench
trial, the judge is better able to ensure that self-representation does not become
an unendurable burden. This case exemplifies the point. Here, any potential
unfairness was alleviated during trial by the judge's frequent intervention and
questioning to help DesRosiers articulate questions for his examination of the
witnesses. Considering the totality of the circumstances, it is extremely unlikely
that counsel would have materially aided DesRosiers in achieving a more
satisfactory outcome. Thus, the trial judge did not misuse his discretion by
denying the appellant's serial motions for appointed counsel. Compare In Re
Lane, 801 F.2d 1040, 1041-42 (8th Cir.1986); Childs, 705 F.2d at 922-23.

VI
32

We need go no further. Although DesRosiers has advanced other arguments,

none warrant extended comment. It suffices to say that we have considered all
the contentions raised by the appellant and find them lacking in merit. The
judgment of which DesRosiers complains was anchored in fact and rendered in
accordance with appropriate legal standards after a trial unmarred by reversible
error.

33

Affirmed.

At the times material hereto, each defendant, in one way or another, was
involved either with the operation of the ACI or with the provision of medical
care to inmates. For the purposes at hand, we need not differentiate among the
eight defendants

The district court expressed no opinion on, and DesRosiers' appeal does not
raise questions anent, the merits of any state-law tort claims. And, although
DesRosiers' brief on appeal does mention the Due Process Clause, the
parameters of substantive due process are, for our purposes, coterminous with
those of the Eighth Amendment. See, e.g., Archie v. City of Racine, 847 F.2d
1211, 1218-20 (7th Cir.1988) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct.
1338, 103 L.Ed.2d 809 (1989)

The rule provides in pertinent part:

Findings of fact, whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.
Fed.R.Civ.P. 52(a).

For that matter, there was no solid evidence that either poor hygiene or bungled
bandaging caused DesRosiers' infection

We emphasize that the plaintiff has not claimed, either below or on appeal, that
his transfer into punitive segregation was itself violative of the Morris Rules--a
distinction of considerable import. See, e.g., Rodi, 941 F.2d at 28 (ruling that
emergency detention provisions of the Morris Rules create liberty interests
implicating procedural due process rights)

To be sure, in some cases the violation of a prison rule might be relevant to cast
light upon an official's intent. See, e.g., Strachan, 548 F.Supp. at 1202. But that
point has no pertinence here, given the generality with which the rule in
question was written

The Manual was apparently kept at the nurses' station in the maximum-security
wing. Neither the Study nor the Manual are part of the record below

We note, too, that the colloquy below makes it crystal clear that the plaintiff
knew, well in advance of trial, that the Study and Manual existed. Yet, he failed
to bring the matter of non-production to the court's attention at the pretrial
hearing or in some other timely fashion. In similar circumstances, courts have
often deemed discovery violations to have been waived. See, e.g., Clinchfield
R.R. v. Lynch, 700 F.2d 126, 132 (4th Cir.1983); Allen Pen Co. v. Springfield
Photo Mount Co., 653 F.2d 17, 23 (1st Cir.1981); Ali v. A & G Co., 542 F.2d
595, 596 (2d Cir.1976); Steinberg v. Ogden Foods, Inc., 501 F.2d 1339, 1341
(6th Cir.1974) (per curiam); Butler v. Pettigrew, 409 F.2d 1205, 1207 (7th
Cir.1969)